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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50158
Experience:  Qualified Employment Solicitor
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My workplace has told me that they wont pay me my statuary

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My workplace has told me that they won't pay me my statuary paternity leave pay. According to our contract, they aren't obliged to pay us but the last three of my colleagues to take paternity leave were all paid. I have been told that there has been a 'change in policy' but there has been absolutely no notification of this in writing or by any other means and I was only told after I had completed my leave. Would I have grounds to appeal?

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. As far as you are concerned, when you took the leave was there anything, either in your contract or a workplace policy that said you are entitled to be paid during that period?


No. Unfortunately my contract does not say that I will be paid. I took the leave on the understanding that three of my colleagues (who work to exactly the same contract as myself) had been paid for their paternity leave. My manager acknowledged that this policy had changed but there had been no notification of any kind.

Ben Jones :

So just to clarify - this is about statutory paternity pay, not additional company paternity pay? Do you meet the legal criteria to be entitled to SPP?


Yes, this is just about SPP. I don't meet the criteria. I did realise this but, as my colleagues didn't meet the criteria either but were paid, I had thought that I would be treated equally.

Ben Jones :

Unfortunately it does not quite work like that. If some of your colleagues have received SPP it does not automatically mean that you would also be entitled to it, especially if your contract does not guarantee it or mention any other promises that you would be entitled to it. Generally, there is no entitlement to equal treatment in such circumstances because the employer would only be acting unlawfully if they had treated you differently due to a discriminatory reason. This would include gender, race, religion, age, etc but I do not see any discriminatory reasons applying here. For example, if because of your gender you were not given these payments but women had been given their equivalent entitlements but as you are comparing yourself to other men then there is not really any discrimination at play.


The other issue is if you can show that there has been a solid precedent set for these payments. There is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers.


The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify.


Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:

  • On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract

  • Whether the terms are always the same - large differences will make the argument they had become implied weaker

  • The extent to which the terms are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such terms were being applied


You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal.


Thanks for your help in clarifying this. It is what I'd thought but it is good to know for certain. Many thanks.

Ben Jones :

you are most welcome, all the best

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